Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem

Goode, Victor M., Johnson, Conrad A., Fordham Urban Law Journal

INTRODUCTION

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education (1) in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, (2) the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. (3) One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates and the near absence of any extensive record from committees, Congress finally passed the Civil Rights Act of 1968. (4) This provision, enacted as 42 U.S.C. [subsection] 3601-3619 and [section] 3631, and also known as the Fair Housing Act ("FHA"), prohibits discrimination in the lease, sale, or rental of housing on the basis of race, color, religion, sex, familial status, or national origin. (5) Nevertheless, many recent commentators have agreed that few areas of the law have failed to achieve their lofty goals as dramatically and persistently as our nation's fair housing statutes. (6) The dream of ending discrimination in housing, which many hoped would provide the vehicle for integrating neighborhoods, schools, and eventually the nation's consciousness, has been largely unrealized. (7) Some have argued that this has been primarily due to the deficiencies in the law itself. (8) Others criticize the limited enforcement it has received, (9) but most agree that persistent opposition to the integration of our housing market has left Title VIII as an ironic component of the civil rights arsenal. (10) The law certainly stands as a bold and optimistic proclamation. As stated by Senator Walter Mondale, one of its sponsors, the Act would replace the nation's ghettos by "truly integrated and balanced living patterns." (11) While some civil right measures have been curtailed over the years, Title VIII has been uniformly supported by the few Supreme Court decisions that have reviewed the constitutionality or the application of the statute. (12) Since its adoption over thirty years ago, lower courts have mainly adopted an interpretation of the Fair Housing Act that reflects an effort to fulfill its broad legislative purpose. (13) Many state agencies have also adopted the principle prohibitions of Title VIII, (14) and with its 1988 amendments, the law has been strengthened, broadened, and attorney's fee provisions have permitted the private bar to play a primary role in its enforcement. (15) Nevertheless, housing discrimination remains persistent and Title VIII is a mere stopgap measure for a social issue that seems intractable. (16)

Despite repeated judicial sanctioning of the most egregious forms of housing discrimination, there are areas of fair housing law and litigation that warrant a closer examination because they reveal the legacy of racial discrimination that continues to infect the process of change in this field. This Article will examine one aspect of compensation remedies in fair housing cases. While the general scope of potential damages under Title VIII has been well established for many years, (17) one area of potential relief that remains fraught with uncertainty is adequate compensation for emotional distress. (18) While the general trend of cases, in both administrative agencies and courts, indicates that significant progress has been made in the recognition and understanding of emotional harm, failures to adequately address this issue continue. (19) Although administrative judges appear more receptive to evidence of emotional harm and are more likely to award significant damages now than in the past, (20) the federal bench has not demonstrated a similar consistency toward accepting claims of emotional harm. (21) Despite the progress in judicial recognition of the emotional harm caused by racism, there is still a disturbing trend that diminishes the value ascribed to the harm suffered by victims of housing discrimination and limits proper compensation. …

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